The Two-Thirds Supermajority Myth

All It Takes for Democrats to Raise Revenue Is the Will, the Discipline, and the Balls

If there's one thing everybody knows about the contentious special session currently going on in Olympia, it's that legislators can't directly raise taxes or close tax loopholes. Their hands are tied.

Except... everybody's wrong.

Yes, Tim Eyman's Initiative 1053, passed in 2010, requires a two-thirds supermajority in both houses for any tax increase or exemption repeal, and with Republicans adamantly opposed to new revenue, that supermajority is impossible to obtain. But if there's another thing that everybody knows about Olympia, it's that I-1053's supermajority provision is blatantly unconstitutional. So if Democrats wanted—I mean, if they really, really wanted—they could just plain ignore it.

Here's how it works: If house Speaker Frank Chopp, as a point of order, rules that a revenue bill only requires a simple majority to pass, and that bill passes by a simple majority, then the bill has passed the house. And if the president (or presiding president pro tempore) of the senate rules as a point of order that this same revenue bill requires a mere simple majority to pass, and that bill passes by a simple majority, then the bill has passed the senate. And if Governor Chris Gregoire then chooses to sign that bill into law, it is law. Simple as that.

Of course, lawsuits would ensue, but that's exactly the point of this exercise.

Ever since voters first approved a supermajority requirement with I-601 in 1993, opponents have attempted to challenge the provision's constitutionality, and each time the state supreme court has weaseled out. Either the issue wasn't ripe, or the plaintiffs didn't have standing, or, as in 2009's Brown v. Owen, all nine justices agreed: "This court will not interfere in the internal proceedings of a legislative house to overturn a ruling on a point of order." See what's so clever about the process described above? In Brown v. Owen, the justices refused to intervene in Lieutenant Governor Brad Owen's ruling that a revenue bill required a supermajority to pass; presumably, had he ruled the other way, it would have been equally "nonjusticiable." That's a legal blueprint for ignoring I-1053.

And if Owen remains an obstacle, that's easily dealt with, too. If Gregoire leaves the state, Owen becomes acting governor, and the senate Dems elect a president pro tempore to preside over such rulings. Simply elect a pro tempore who believes a two-thirds vote is not required, and presto, by senate rules it isn't.

And should such a maneuver finally force the court to address the underlying constitutional question, the answer seems clear. Throughout its text, our state constitution declares what majorities are needed to do what: "a majority" to pass a bill or to constitute a quorum, a "two-thirds majority" to override a gubernatorial veto or amend a redistricting plan. But nowhere does the constitution permit the people to amend the same via initiative. Thus it is Article II, Section 22 that defines the majority necessary to pass a revenue bill, not I-1053.

The point is, if the Democratic majority had the will, the unity, the discipline, and the balls, it could pass any revenue package it wanted on a simple majority vote. But the Dems, alas, have none of those things.

"This is a very high-risk strategy for getting revenue," warns state senator Ed Murray (D-43). "If a court found that the bill was improperly passed, it could put an injunction against any tax collections while the issue worked through the courts." And house Ways and Means chair Ross Hunter admits that this is a strategy that has been discussed, but it was dismissed due to "huge long-term problems." Meanwhile, another lawsuit challenging I-1053's constitutionality—filed by 12 house Dems—is currently wending its way through the courts, but is not expected to produce an opinion until 2013.

In truth, with members of their conservative "Roadkill Caucus" vowing to oppose new revenue until "reforms" are passed, the Dems don't even have the simple majority necessary to put revenue on the ballot this special session.

But despite their protestations, I've come to believe that many Dems secretly welcome I-1053 as a means of avoiding politically inconvenient votes. In short, the supermajority provision isn't as much a requirement as it is an excuse.